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2017 DIGILAW 516 (ORI)

State of Odisha v. Gobinda Chandra Rouray

2017-05-03

S.N.PRASAD, S.PANDA

body2017
JUDGMENT S.N. PRASAD, J. - This Writ Petition having been filed by the petitioners, State of Odisha, assailing the order dated 30.08.2016 passed in C.P. No. 120 of 2015 arising out of O.A. No. 2375 of 2013 whereby and where under the Odisha Administrative Tribunal, Principal Bench, Bhubaneswar while proceeding with the Contempt against the opposite parties, the petitioners herein for willful non compliance of the order dated 27.03.2014 passed in O.A. No. 2375 of 2013 in which the Tribunal has directed the Disciplinary Authority to conclude the Departmental Proceeding pending against opposite party no. 1 applicant within a period of ten months, failing which the proceeding will be deemed to have been dropped. 2. The brief facts of the case is that opposite party no. 1 applicant, who was working as a Junior Engineer (Mechanical) posted at Bhubaneswar in the office of Stores and Mechanical Division, a Departmental Proceeding was initiated against him vide order dated 04.01.2001 for certain alleged lapses on his part during his incumbency for the period 1999-2000. The Departmental Proceeding has been initiated by appointing an Enquiring Officer in which opposite party no.1 applicant has put his appearance but in spite of all sincere efforts having been taken by him, the Departmental Proceeding has not been concluded. The Disciplinary Authority has not considered the fact that the applicant was to retire shortly, hence he approached the Tribunal and the Tribunal while disposing of the Original Application has directed the Disciplinary Authority to conclude the Departmental Proceeding within a period of ten months, failing which the proceeding will be deemed to have been dropped and the respondent authorities shall disburse all the retiral dues of the applicant immediately thereafter. The Departmental Proceeding has not been concluded within the time framed as has been directed by the Tribunal and as such the applicant after completion of the stipulated period, has approached the Tribunal for initiation of a Contempt Proceeding against the functionaries of the State of Odisha, who are the petitioners herein, for their willful non compliance of the said order in not disbursing the retiral benefits. It is the case of opposite party no.1 applicant that when the notice has been issued by the Tribunal in the Contempt Proceeding, this Writ Petition has been filed and as such the same may not be entertained rather it is a fit case to be dismissed. It is the case of opposite party no.1 applicant that when the notice has been issued by the Tribunal in the Contempt Proceeding, this Writ Petition has been filed and as such the same may not be entertained rather it is a fit case to be dismissed. While on the other hand, the case of the State of Odisha, who are the petitioners in the instant Writ Petition, is that when the Tribunal has passed an order for conclusion of the Departmental Proceeding within a period of ten months, failing which the proceeding will be deemed to have been dropped and for disbursement of the retiral dues of the applicant, the State has filed a Miscellaneous Petition on 15.01.2015 for extension of four months more time to conclude the proceeding as because as per the direction issued by the Tribunal, although the enquiry was concluded within time and thereafter the second show cause notice was also served but the final order could not be passed. The Tribunal has not disposed of the said application shortly rather it has been dismissed only on 09.07.2015. The assertion made by the State of Odisha that when the extension of time petition was pending before the Tribunal, the authorities have passed an order on 23.03.2015 directing to recover a sum of Rs. 1,69,322/- from the retirement gratuity of the Delinquent Officer in the light of the power conferred upon the Chief Engineer (Mechanical), who is the appointing authority of the applicant vide power of delegation dated 18.03.2015 and as such the final order passed by the Chief Engineer inflicting punishment for recovery of the amount cannot be said to be illegal and in the light of the same the initiation of the proceeding under the Contempt of Courts Act by the Tribunal is not justified. The further assertion made by the learned Addl. The further assertion made by the learned Addl. Government Advocate representing the State of Odisha that the order dated 23.03.2015 has been passed in exercise of the power conferred under Rule 7 (2)(a) of Orissa Civil Service (Pension), Rules, 1992 (hereinafter referred to as ‘the Rules,’1992’) and in pursuance thereto the order of punishment has been passed, hence the same has got no infirmity, in the result the proceeding which has been directed to be quashed on the deeming provision cannot be said to be quashed in the eye of law since the final order dated 23.03.2015 has been passed during pendency of the extension application for extending the stipulated time granted by the Tribunal in O.A. No. 2375 of 2013. 3. Learned counsel representing opposite party no. 1/applicant rebutting the argument advanced by the learned Addl. Government Advocate, has submitted that the order dated 23.03.2015 cannot be said to be an order passed in consonance with the provision of Rule 7 (2) (a) of the Rules, 1992. According to him the provision of Rule 7(2) (a) of the Rules, 1992 confers power upon the Government, the right of withholding pension or gratuity or both either or full or part as such it is only the Government who can pass an order but in the instant case the order of punishment dated 23.3.2015 has been passed by the Chief Engineer (Mechanical), who cannot be said to be competent authority to pass an order against him in pursuance of the provision of Rule 7(2)(a) of the Rules, 1992. Hence the contention raised by the learned Addl. Government Advocate that the final order has been passed for conclusion of the Departmental Proceeding is not acceptable since the Tribunal has stated in the order passed in O.A. No. 2375 of 2013 to conclude the Departmental Proceeding by passing an order in accordance with law. 4. We have heard learned counsel for the parties and perused the documents available on record. The fact, which is not disputed in this case, is that opposite party no. 1 applicant while holding the post of Junior Engineer (Mechanical) was departmentally proceeded against the alleged misconduct of commission of some irregularities. He was asked to appear before the Enquiry Officer before whom he put his appearance and the Enquiry Officer after going through the various records has found the charges proved against opposite party no. 1. 1 applicant while holding the post of Junior Engineer (Mechanical) was departmentally proceeded against the alleged misconduct of commission of some irregularities. He was asked to appear before the Enquiry Officer before whom he put his appearance and the Enquiry Officer after going through the various records has found the charges proved against opposite party no. 1. But while the proceeding was being delayed, he preferred the Original Application before the Odisha Administrative Tribunal for issuance of a direction to quash the Departmental Proceeding on the ground of delay. The Tribunal while disposing of the Original Application has directed the Disciplinary Authority to conclude the Departmental Proceeding within a period of ten months, failing which the proceeding will be deemed to have been quashed and the consequence would be to disburse the retiral benefit in favour of the applicant. 5. We have examined the order passed by the Tribunal in O.A. No. 2375 of 2013 wherein the following order was passed. “Considering the submissions made by learned counsel for both the parties and keeping in view the fact that the departmental proceeding has been initiated against the applicant in 2001 and in the meantime more than 13 years have already passed without submission of any enquiry report by the Inquiring Officer and lastly on 11.6.2013 another Inquiring Officer has been appointed, so also the submission made by the learned Standing counsel that as a last chance if six months time is allowed to the Inquiring Officer, he will enquire into the matter and submit his report, the respondents authorities are directed to take all required steps for conclusion of the enquiry in the Departmental Proceeding, which was initiated against the applicant, within a period of six months from today and since today is 27.3.2014 the enquiry report must be submitted by 26.9.2014 positively. If the enquiry report is submitted within the aforesaid period, final order shall be passed in the said proceeding within a period of four months thereafter. The applicant is also directed to cooperate in the day to day enquiry in the proceeding for its early conclusion. If the enquiry report is submitted within the aforesaid period, final order shall be passed in the said proceeding within a period of four months thereafter. The applicant is also directed to cooperate in the day to day enquiry in the proceeding for its early conclusion. It is made clear that, if the Department Proceeding shall not be completed in all respect within the above said period of ten months, the Departmental Proceeding will be deemed to have been dropped and the respondent authorities shall disburse all the retiral dues of the applicant immediately thereafter” It is evident that the Tribunal while interfering with the grievance of the applicant has directed to submit the enquiry report by 26.09.2014 positively and if the enquiry report is submitted within the aforesaid period, the final order shall be passed within a period of four months thereafter. The applicant was also directed to cooperate in the day-to-day enquiry for its early conclusion with a further stipulation in the said order that if the Departmental Proceeding shall not be concluded in all respect within the above said period of ten months, the Departmental Proceeding will be deemed to have been dropped and the respondent authorities shall disburse all the retiral dues of the applicant immediately thereafter. The petitioners, State of Odisha has submitted the enquiry report within the time stipulated by the Tribunal. However the final order could not have been passed, hence Miscellaneous Petition was filed before the Tribunal, which was registered as M.P. No. 36 of 2015 on 15.01.2015 but the same has not been decided immediately rather it was dismissed only on 09.07.2015. The Addl. Secretary to Government in the Department of Water Resources has issued one communication on 18.03.2015 addressing the Engineer-in-Chief, Water Resources, Odisha, Bhubaneswar, who was the appointing authority of the applicant to complete the Departmental Proceeding in all respect against him and submit compliance of Order No. 07 dated 27.03.2014 of the Odisha Administrative Tribunal, Bhubaneswar under intimation to the Department. In pursuance of the same, the Chief Engineer (Mechanical) has passed an order on 23.03.2015 stating therein that while the proceeding was pending opposite party no. In pursuance of the same, the Chief Engineer (Mechanical) has passed an order on 23.03.2015 stating therein that while the proceeding was pending opposite party no. 1 applicant has retired from service w.e.f. 31.01.2013 on attaining the age of superannuation and as such the proceeding became a deemed proceeding under Rule 7 (2) (a) of the Rules, 1992 and accordingly passed the order of punishment to the effect to recover a sum of Rs. 1,69,322/- only from the retirement gratuity of the delinquent officer. 6. On the strength of the factual aspect, learned Addl. Government Advocate has submitted that the initiation of the Contempt Proceeding is absolutely unjustified for the reason that when one Miscellaneous Petition was filed for extension of time before the Tribunal, which was pending from 15.01.2015 to 09.07.2015 and during the intervening period since the final order has been passed on 23.03.2015, as such it cannot be said that the Departmental Proceeding has lost its force. We, on examination of the facts and after going through the record are of the conscious view, that whenever an application is filed before any authority or Court of law, it has to be decided expeditiously in the nature of the case in hand wherein the order is for quashing of the Departmental Proceeding in case of non conclusion of it within a stipulated period and before completion of the stipulated period and application for extension of time has been filed by the functionaries of the State of Odisha and the same has been kept pending for a long period, which ultimately has been dismissed on 09.07.2015 and as such since the application was pending till 09.07.2015 and in between this period, the final order of punishment was passed on 23.3.2015, it cannot be said that the Departmental Proceeding has lost its force. Hence we are in agreement with the submission of learned Addl. Government Advocate in this regard. The learned Tribunal, ought to have taken into consideration this aspect of the matter while proceeding with the Contempt but it has not considered, rather the date has been fixed for compliance of the order passed by it. Hence we are in agreement with the submission of learned Addl. Government Advocate in this regard. The learned Tribunal, ought to have taken into consideration this aspect of the matter while proceeding with the Contempt but it has not considered, rather the date has been fixed for compliance of the order passed by it. It is settled that the order passed by a Court can only be complied with if it is in force legally but according to our conscious view the order passed by the Tribunal in O.A. No. 23754 of 2013 cannot be said to be in its force so far as it relates to deeming clause with a direction for quashing of the Departmental Proceeding in case of non-conclusion of the same within the stipulated period. 7. At this juncture, learned counsel appearing for opposite party no. 1 applicant has submitted that the order dated 23.03.2015 cannot be said to be in accordance with law since the same has been passed by the authority, who has no competency to do so. We have examined this aspect of the matter by going through the provision of Rule 7 (2)(a) of the Rules, 1992. For ready reference the same is being reflected hereunder. “7. Right of Government to Withhold or Withdraw Pension- (1) The Government reserve to themselves the right of withholding a pension or gratuity, or both either in full or in part, or withdrawing a pension in full or in part. Whether permanently or for specified period and of ordering recovery from a pension or gratuity of the whole or part of any pecuniary loss caused to the Government, if in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence in duty during the period of his service including service rendered on re-employment after retirement: Provided that the Odisha Public Service Commission shall be consulted before any final orders are passed: Provided further that when a part of pension is withheld/withdrawn, the amount of such pension shall not be reduced below the amount of minimum limit. (2)(a) Such departmental proceedings referred to in sub-rule(1), if instituted while the Government servant was in service, whether before his retirement or during his reemployment, shall, after the final retirement of the Government servant, be deemed to be a proceedings under this rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the Government servant had continued in service: Provided that when the departmental proceedings are instituted by an authority, subordinate to Government that authority shall submit a report recording its findings to the Government.” The provision enshrined under Rule 7 of the Rules, 1992 is very explicit, which confers power upon the Government, the right of withholding a pension or gratuity, or both either in full or in part in case of the plea having been proved either by the Departmental or Judicial Proceedings. The further stipulation in the provision is that, if the Departmental Proceeding referred to in Sub-Rule (1), if instituted while the Government servant was in service, whether before his retirement or during his re-employment, shall after the final retirement of the Government servant, be deemed to be a proceeding under this Rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the Government servant had continued in service provided that when the Departmental Proceeding are instituted by an authority, sub ordinate to Government that authority shall submit a report recording its finding to the Government. We after taking into consideration the provision of the Rule 7 (2) (a) (1) of the Rules, 1992 are of the considered view that the order dated 23.03.2015 passed by the Chief Engineer (Mechanical) cannot be said to be an order passed in consonance with the provision of Rule 7 reason being that the Engineer-in-Chief, ought to have been submitted a report before the Government under the proviso to Rule 7 (2) (a) but instead of doing so he has directly passed the order and as such the order passed by the Chief Engineer (Mechanical) cannot be said to be in consonance with the statutory provision. It is settled that if anything has been provided under the statue the things has to be done strictly in consonance with the provisions and there cannot be any deviation from it, if there is any deviation the order will be said to be without any authority of law. We are conscious of the fact that the Order dated 23.03.2015 is not under challenge but we sitting under Article 226 of the Constitution of India cannot shut our eyes if order is patently illegal otherwise it will lead to miscarriage of justice, hence we in exercise of power conferred under it and taking into consideration the legal position as discussed above, are of the considered view that the order passed by the Chief Engineer (Mechanical) dated 23.03.2015 is also not in accordance with law. Accordingly, the said order is held to be without any jurisdiction. 8. There is no quarrel with the proposition that in cases where it is found that the enquiry to be deficient either procedurally or otherwise the proper course always is to remand the matter back to the concerned authority to redo the same afresh and the delinquent employee should not be given benefit on the technicality but simultaneously the provision of Rule is also to be followed the principle for not giving benefit on technicality to the delinquent employee is that if any allegation has been leveled against the delinquent employee, it has to come to its logical end on its own merits. Accordingly, instead of closing the matter finally on technicality as discussed hereinabove, we thought it proper to remit the matter to the Government to pass a fresh order in accordance with law as expeditiously as possible, preferably within a period of eight weeks from the date of receipt of the copy of this judgment and we direct accordingly. Accordingly, the Writ Petition stand allowed with the observations and directions made above. Petition allowed.